P. v. Jorgensen

Filed 6/8/06 P. v. Jorgensen CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Kenneth A. Jorgenson appeals from a judgment of conviction following a court verdict finding him guilty of making a criminal threat and witness intimidation. The trial court sentenced defendant to an aggregate term of five years in state prison, consisting of the upper term of three years for the criminal threat offense and a consecutive term of two years for the witness intimidation offense. Defendant's sole contention on appeal is that the imposition of the upper term on the first count violated the Sixth and Fourteenth Amendments of the United States Constitution pursuant to Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We reject defendant's contention in light of People v. Black (2005) 35 Cal.4th 1238 (Black) and affirm.

I. Factual and Procedural Background

The incident giving rise to defendant's conviction occurred on June 12, 2004, at the apartment of Marie Kinney.[1] Defendant, who had known Kinney for a few weeks, was interested in a romantic relationship with her, although Kinney indicated that they were merely acquaintances brought together by defendant's interest in buying a used car Kinney was selling. On the date in question, defendant went to Kinney's apartment intent on retrieving a medallion he claimed to have given her and a check he was having mailed to her residence. Defendant began banging and kicking on the door to Kinney's apartment, while screaming profanities and yelling that he was going to kill her. Defendant kicked the door so hard that he damaged it, and his pounding and kicking were so violent that the entire apartment building shook.

Two girls in a neighboring apartment heard the commotion and went out onto their balcony to investigate, carrying a cordless telephone with which to call the police if necessary. When defendant spotted the two girls with the phone, he threatened to kill them and â€